The Federal Rules of Civil Procedure (FRCP) require that when attorneys plan to rely on expert witness testimony, they disclose and designate their witnesses in a timely manner. See, e.g., FRCP 26(a)(2)(D)(i); See Sirois v. USAA, Case No. 3:16-cv-1172 (MPS), (D. Conn. 2019). In a recent lawsuit, a Connecticut district court discussed the test to apply to determine whether expert testimony should be precluded as a sanction against a party who allegedly failed to make a timely disclosure. See generally id. This article examines the judge’s rationale behind the ruling and the four-part test for preclusion of experts.
As the district court noted, the Federal Rules generally require that expert witnesses be disclosed “’at the times and in the sequence that the court orders,’ or, in the absence of a court order or stipulation, ‘at least 90 days before the date set for trial.’” Id., at 2 (quoting FRCP 26(a)(2)(D)(i)). Parties who neglect to make these disclosures on time are prohibited from using “’that information or witness to supply evidence . . . at trial, unless the failure was substantially justified or is harmless.’” Id. (quoting FRCP 37(c)(1)). However, preclusion of expert testimony is considered an extreme measure, and the Second Circuit developed a four-part test to determine when that sanction should be utilized. Id. (citing Vioni v. Providence Inv. Mgmt., LLC, No. 17-2572-CV, 2018 WL 4353826, at *2 (2d Cir. Sept. 12, 2018)). In addition, imposing the sanction of preclusion is not required, so courts may make decisions on a case-by-case basis. Id. (citing Outley v. City of New York, 837 F.2d 587, 591 (2d Cir. 1988)).
According to the Second Circuit, before barring expert testimony on the basis of an untimely disclosure, courts must consider four factors. Id. (citing Vioni v. Providence Inv. Mgmt., LLC, supra.). Those considerations are: “’(1) the party’s explanation for the failure to comply with the [disclosure requirement]; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.’” Id.
In the case before it, the Connecticut court determined that the reason given for failing to timely disclose an additional expert was inadequate. See id. According to the plaintiffs, whose omission was at issue, the case, which concerned a purported breach of contract by a home insurer, was a type in which parties routinely “’beg off damages discovery until after a decision for the homeowner on summary judgment.’” Id. (quoting Plaintiff’s Brief, ECF No. 85, at 4). As the district judge noted, however, the plaintiffs acknowledged that in the specific lawsuit before the court, there was no agreement between the parties to delay the discovery. See id. Moreover, an alternate schedule was never proposed to the court, and “their usual, informal practices would not excuse noncompliance with a court order or the Federal Rules.” Id.
The second part of the test asks courts to consider the significance of the proposed testimony. See id., at 3. In this instance, the judge found that the testimony in question was important. See id. Both parties agreed that the plaintiffs would have to prove that the alleged contractual breach caused damages, and the amount of damages would have to be established as part of the plaintiffs’ burden. See id. The court agreed with the plaintiffs that “’[i]t is axiomatic in a case such as this, a damages claim must be supported by documentation and other relevant evidence,’” and that “’[d]emonstrating damages is an element of a claim for breach of contract.’” Id. (quoting Plaintiffs’ Brief, supra). Accordingly, the second prong of the test was met by the plaintiffs.
With respect to the third element, courts must evaluate what prejudice the party requesting exclusion of testimony may suffer if the evidence were permitted. See id, at 2. In the court’s view, the risk of harm or prejudice to the defendant opposing the testimony would be minimal. See id., at 3. The defense received the new damages quote in September of 2018, and the plaintiffs made a formal disclosure regarding their plan for the new expert to testify in November. See id. Under the FRCP, “the default time for disclosure before trial is 90 days.” Id. Jury selection for the trial in this case does not begin until June 12, 2019, and the judge argued that the disclosure, albeit not timely, still gave the defense over seven months “to prepare a response to the new expert’s testimony.” Id., at 3-4. Given the circumstances, the court felt that the defendants had and continue to have sufficient time to review and form an opposing strategy to the testimony in question. See id., at 3.
In addition to the issue of adequate preparation time, the judge also addressed how the type of testimony proposed was simple and of the type that most defendants would anticipate, which renders the idea of prejudice absurd. See id., at 3-4. As the court stated, “the damages analysis disclosed in the [new] expert’s report…is not especially complicated,” and while the amount of damages had been altered by the new evidence, “the Plaintiffs disclosed their theory of damages years ago.” Id., at 3. Taking these factors into account, the judge declared that “it strains credulity to assert that deposing the designated expert and retaining an expert to rebut that witness’s testimony could not be accomplished in 90 days.” Id.
The fourth part of the test regarding whether sanctions should be enacted to exclude expert witness evidence concerns if and when a continuance is called for. See id., at 2-4. In the case before him, the Connecticut judge decided not to grant a continuance. See id., at 4. His grounds for denying such a measure were that a continuance was unnecessary since the trial date was “still nearly five months away.” Id. However, the court did modify the scheduling order, extending the deadlines for the defense to depose the new witness and to designate a rebuttal expert. See id.
The Connecticut district judge emphasized two matters that factored into his decision regarding precluding the new expert. First, he agreed that while the first part of the test “weighs in favor of precluding” the additional testimony, “the remaining three [considerations] weigh in favor of allowing it.” Id. Second, the judge underscored the fact that the sanction of precluding expert testimony is an extreme act, and courts should only take such action if preclusion is required by applying the Second Circuit’s four-part test. Federal practitioners should take note of this holding and be aware that in most cases, courts may be reluctant to bar new testimony as a sanction under the FRCP. Absent extreme circumstances, attorneys who face additional witnesses may wish to contemplate other options to address such evidence. Judges may be persuaded to modify scheduling orders to provide lawyers with additional time to prepare for new testimony, as was done in the case at hand. Absent a continuance, preclusion, or schedule modification, however, attorneys can stay on top of these situations by making sure they retain good rebuttal witnesses and have prepared thorough cross-examinations of new experts. By having a multi-faceted strategy for dealing with new witnesses, litigators will be well-equipped to handle unexpected incidents and best assist their clients.